« PrécédentContinuer »
Now, if a testator who has made such a bequest is afraid 1 that he will die within three months of the day on which the will is executed, and if he is anxious that the bequest take effect in spite of all the civil law says to the contrary-what is he to do? Manifestly take a hint from the case decided in 1857. Devise the land to some person to hold in trust for the charity he wishes to benefit; and add a clause providing that, in case the bequest proves void for any reason, the land is to go, either to the same person-or, still better, to some other_free from
any trust or condition whatever, express or implied.' He will select someone who, he feels
' certain, will not turn the gift to his own use. And, to make security doubly sure, he will abstain from any communication with the person mentioned in the added clause—that might afterwards be proved to imply that, in spite of the words he used, he did really intend a trust after all.
A lie, is it, to say 'no trust or condition whatever,' when a trust or condition is meant all the same? Well, no ; there is no ‘legal' trust or condition whatever, though there is a trust and condition in conscience' —and it is with ‘legal 'matters we are dealing. None but the worshippers of State omnipotence would equiparate ‘law’and conscience' everywhere. This particular law does not trouble about conscience—it would be a gross presumption anyhow, for it has nothing whatever to do with conscience (Canon 1513, § 2)—and conscience need not trouble about it. The best English exponents of the law seem to find difficulty in recognizing any
obligation’that the ‘law'cannot enforce.2 Wetake them at their word : as they put things, there is, in cases of the kind, no obligation of any kind whatever.
Now, in the case before us, the testator took exactly the course that ought to be taken by an intelligent man who knows the 'law' and is anxious to prevent its harming a deserving charity. We cannot, therefore, agree with ‘Leo' that the course adopted proves the very opposite. To construct a major and a minor premiss : 'If a man is very anxious that his property go to charity, he will comply with certain conditions. X has complied with them all.' From this the laws of logic prevent our concluding that “X was very anxious, etc.' But they do not force us to conclude that he was anxious not to.
And the broad facts carry us a little further. The device is so well known, and is recommended so strongly by the men who know how to do things, that its adoption establishes a prima facie case in favour of the charity. When the devisee admits, as ' Leo' does, that he has no claims whatever on the deceased, the case is proved—for all practical purposes. So we are afraid, 'Leo,' that the charity holds the field. But, though the land has gone, you have one consolation. You were evidently selected by the deceased as the honourable man who would not ‘turn the gift to his own use,' the man who would stand for a dead confrère's wishes against the purely penal clauses of a law void before God and in conscience.
1 And indeed whether he is afraid or not. No one knows when his time is coming.
2 Cf. Slater, Questions of Moral Theology, pp. 282-8.
FASTS. RESERVED SINS AND CENSURES
Rev. DEAR SIR,-Would you kindly give me your view on the following points :
1°: Is the opinion any longer tenable that women are excused from fasting at the age of 50 ?
2° What is the meaning of 'nec pervigilia anticipantur' of Canon 1252, $ 4?
3°: Why does Canon 900, 2°, allow the confessor power when the Superior has refused to give it to him'? Is it not strange to make grant and refusal synonymous ?
4°. Does the faculty conferred in Canon 2254, § 1, for absolution from censures in urgent cases, extend to the case of attempted absolution of an accomplice'?
1o. No longer tenable, we think. The canons on fasting (1250-4) arrange the whole matter anew' (22), and the omnes' of 1254, § 2, would seem comprehensive enough to include all women within the ages specified. That, we note, is the view of Vermeersch, 1 and of the editor of the Nouvelle Revue Théologique. But, of course, in each particular case the circumstances will have to be taken into account: and a liberal decision may be much better grounded than if men of the same age were concerned.
2°. It means that if, for instance, the Feast of the Assumption falls on a Monday, the fast—which is prevented by the same canon from falling on the Sunday—is not imposed on the Saturday either.
3°. The purpose of imposing an obligation to have recourse to the Superior, even when his refusal of faculties will be counteracted by the Code itself, is apparently to make the penitent's course a little more difficult—he will have to come twice—and so, perhaps, to encourage him to submit his case in the first instance to the more experienced men who are provided with faculties. And the purpose in supplying the power which the Superior refuses is, we presume, to carry out in practice the milder principles now sanctioned by the Church in dealing with reserved cases. Refusal and grant are not made synonymous : but the Code may grant what the Superior refuses.
4°. It does—there is no exception made. The fact that this very exception is made in the third section of the same canon only confirms our conviction,
1 Summa Novi Jur. Can., n. 494 : ‘Mirum privilegium, quod quidam pro mulieribus quinquagenariis, sine ratione, addere solebant, ipso Codicis silentio reicitur.'
: June, 1920, p. 378—reviewing and approving an article by P. del Castillo, S.J., in Sal Terrae, March, 1920, pp. 226 sqq.
THE TENURE AND ALIENATION OF ECCLESIASTICAL
REV. DEAR SIR,-I have read your answers re alienation of Church property; and as answers to the particular queries, or assuming our parochial houses and lands to be bona ecclesiastica, no other answers could be given. But, may I ask you at your leisure to go to the root of the subject and to deal with it funditus and exhaustively. There is the fundamental question : Are our glebes (parochial houses and lands) bona ecclesiastica ? and then there are questions about bona immobilia and bona mobilia.
1. Are our glebes bona ecclesiastica ? Bona ecclesiastica are defined to be : bona quae vel ad Ecclesiam universam et ad Apostolicam Sedem vel ad aliam in Ecclesia personam moralem pertineant' (Canon 1497, § 1). With us neither the church in the diocese nor the Bishop nor the parish priest is a persona moralis in civil law. A house or lands conveyed, say, by lease to N.N. (Bishop or P.P.) and his successors would be a true conveyance to N.N., but would pass to next of kin on his death, by civil law, unless provision were made otherwise, by conveyance during life or by will. The usual mode of tenure in order to safeguard the property is this : the glebe (house and land) is held in a number of names. be stated in the deed of conveyance that they hold in trust for the parish or for the P.P.; but lawyers do not favour the mentioning of a trust on the face of the deed. Usually, then, the house and land is conveyed to a number of persons without any expression of a trust; they hold, in civil law, as joint tenants; when one dies the survivors hold ; the only precaution necessary being that before all the joint tenants disappear new ones should be appointed, or, failing that, by the executors of last survivor. According to the tenure of civil law, therefore, our glebes do not appear to be bona ecclesiastica, as they do not belong to a persona moralis in the Church. It might be said that, distinct from the civil tenure, there is a canonical tenure, that the P.P. (in case of parochial houses), as a persona moralis, is the owner of the parochial houses and lands, of the P.P.'s house and the C.C.'s house. But I don't know if this double tenure of property can be established. And if the P.P. owns merely as one of several joint tenants (and possibly the P.P. may not be one of the joint tenants at all) it would appear that parochial houses and lands are not bona ecclesiastica at all. And, if so, the law against alienation would not apply.
2. If our houses and lands (including church or chapel yards) are bona ecclesiastica, a number of questions arise :
(a) In order to be bound to invest the price of alienated property should not the property sold have been capital producing revenue for parish and intended as such ? The question is suggested by an answer of Bargilliat (under n. 972 (a)) :' aliter vero dicendum esset si ad tempus commodata sit (pecunia], ad usum repetenda quando necessitas postulaverit.'. Suppose a P.P. has a sum of money destined for building a new church, that he cannot commence to build for some time, that he invests
the money in house or land property in the meantime; surely when the time for building comes and the property (house or land) is sold, the money realized can be applied to the building of the new church, and need not and cannot be re-invested for parish.
(b) Trees are classed with immoveable property. What is the canonical position in regard to trees on glebe lands or on church yards ? I speak of what might be called ornamental trees or trees intended to protect house or church from storms. Can they be cut and sold or used without permission of the Bishop? If sold, should the price be invested for the parish? They do not seem to be capital intended for producing revenue for parish as a fruit garden let to a tenant would be ; and hence it does not seem necessary that the price should be invested. Then, about the alienation of the trees : might not the trees on a glebe be regarded as the produce of the land, as hay, fruit, vegetables, etc., and be sold by P.P. or used for firing without permission ? Might the trees on church yard be sold without permission and the price used for church ? Might they be sold without perinission in case they are not of much value and are doing injury to enclosing wall ?
(c) May capital investments be changed without permission ; may a person sell one kind of stock and invest the money realized (bona ecclesiastica) in another stock without Bishop's sanction?
3. A difficulty arises about bona mobilia. It sometimes happens that Stations of the Cross, confessionals, altars, remonstrances, church seats, brass or bronze articles, are sold by a P.P. who has got new articles to a P.P. who is glad to get the old stations, altar, confessional, etc. I see it stated that before the New Code alienation between churches was not subject to censure ; but Capello says this does not hold under the New Code. So I suppose such articles cannot be sold without Bishop's permission, and that the Bishop must have the consent of the Chapter and of the Administrative Council, or the opinion of the Administrative Council according to the value of the articles to be sold (Can. 1532, $82, 3).
4. ‘Locatio’ is included under alienation as well as 'venditio. Now some priests, who have no taste for farming, let their glebe lands from year to year. They do not seem to think that permission is necessary for letting. If glebe lands are bona ecclesiastica is it not forbidden to let them without permission under Canon 1541 ? And even if these church lands and houses are not bona ecclesiastica would it not be well to administer them according to the discipline of the New Code ?
ADMINISTRATOR. Our first duty to our correspondent is to thank him very sincerely, not only for the very enlightening communication here published on the vexed question of the tenure and alienation of ecclesiastical property, but also for a supplementary letter on the same subject which we have received from him. We feel that any pains which we have taken to find a solution for the difficulties which he has raised have been amply compensated by the valuable practical information which he has given us in regard to the civil tenure of ecclesiastical property in this country.
With these few prefatory remarks we shall now address ourselves directly to various points upon which our views have been asked.
1°. There is no need to insist that not merely the universal Church, but also the different institutions upon which she has conferred juridical
personality have the right to hold property. What is of importance in this connexion is that this right arises fundamentally from the fact that the Church is a perfect and independent society, and that therefore she contains within herself, and independently of any other society, all the means necessary or even useful for the attainment of her end. Consequently, the right of the Church to hold property is quite independent of the State, and the refusal of the latter to recognize it is an injustice and leaves the abstract right itself unaffected.1 But the right is one thing and its practical exercise quite another. It is easy to see that the non-recognition on the part of any particular State of the Church's right to hold property may cause considerable inconvenience in practice, and that to obviate these, and to safeguard her temporal possessions from those who would not be deterred from usurping them by the natural and ecclesiastical laws alone, the Church may be compelled to adopt such forms and expedients as will enable her to invoke the aid of the civil authority also. Amongst these expedients the most common is that of vesting ecclesiastical property in a trustee or trustees.
When property is vested in this way, the trustees are regarded by the civil law as its owners ; in the eyes of the Church, however, and in objective fact, the owners are the moral persons in the Church to whom, in accordance with ecclesiastical law, the property really belongs. Personally we cannot see any impossibility or contradiction in this two-fold tenure : the one is real, the other is merely a fiction to surmount the difficulties which arise from the failure of the State to observe the relations which should naturally subsist between it and the Church. Canonists, too, find no insuperable difficulty in this twofold tenure; in fact, they take it as a matter of course in circumstances such as those contemplated. Thus Wernz, in his historical notes on the acquisition of ecclesiastical property, makes the following very pertinent statement :
But it cannot be doubted that in the beginning the property of the Church consisted for the most part in moveable things collected from the pious offerings of the faithful. For the Church as an unlawful society in accordance with Roman Laws could not acquire and possess property, and the dreadful persecutions themselves were unfavourable to the acquisition of immoveable property. As in our day the Catholic Church, in those places in which in accordance with civil law it cannot possess property as a juridicial person, under other forms approved of by the civil laws, truly acquires and possesses temporal goods, so the first pastors of the Church, prudently using the Roman laws, established colleges and sodali
grave diggers, and under the name of another, e.g., that of a sodality of grave diggers, over which the Bishop presided, they acquired and conserved in safety property for the Church.2
Clearly Wernz does not advert even to the possibility of difficulties in the situation; and his position is typical.
; But more important still, various decrees regarding ecclesiastical property adopt the same attitude. For our purpose it will suffice to
1 Cf. c. 1495. 2 Jus Decret., tom, iii. n. 134.